Op-Ed: Fear' greatest threat to First Amendment freedoms

By Gene Policinski, Columnist

Friday, July 19, 2013

At various times, every American likely has wished for less of some things that the First Amendment protects. Less hateful speech. One less noisy protest group. Or maybe even the swift departure of a media outlet or personality whose stance or voice is just grating on a personal level.

For the most part, those wishes come and go — or the targets do, as media fortunes or political trends wax and wane.

But wishes don’t change constitutions. There’s no impact on what we can say, what we write, how we worship, or our ability to challenge and seek to change government policies and practices.

And the same 45 words of the First Amendment exist today as when they were ratified by the fledgling nation as part of the Bill of Rights in 1791.

But the just-released 2013 State of the First Amendment survey by the First Amendment Center gives us reason to worry about the future because of a repeating threat to our core freedoms: fear.

In this year’s survey, conducted in May — about a month after the Boston Marathon bombing – 34% of Americans said the First Amendment goes too far in the rights it guarantees, up 21 points from the 13% recorded in the 2012 survey.

The increase is the largest one-year rise in the survey’s history, and more than double the point increase seen in the wake of 9/11 — when those fearing too much freedom went from 39% to the all-time high of 49%.

Fear has been a powerful force in American history. A mere seven years after we gained the Bill of Rights, amid fear that a critical press would tilt us into war with France, Congress passed the Sedition Act — authorizing jail for those who criticized Congress or the president. Some editors were jailed, but a nation repelled by those actions allowed the act to expire two years later.

President Lincoln suspended certain civil rights during the Civil War. Japanese-Americans were interned during WWII. There were “blacklists” during the McCarthy era. The unprecedented national-security restrictions and regulations adopted quickly after 9/11, embodied in the Patriot Act, resulted from wide fear of future terrorism. Even seven months later, in the 2002 SOFA survey, 49% of us said the First Amendment went too far — still the highest result recorded in the annual sampling.

We have been reminded many times by public officials – from former Speaker of the House Newt Gingrich to several attorneys general — that “the First Amendment is not a suicide pact.” But protecting and preserving fundamental rights preserves the very character of the nation — those qualities of religious liberty and freedom of expression that make the United States unique in all the world.

As the old joke goes, “You’re not paranoid if they really are after you” — and certainly there are forces that aim to do this nation harm. And no constitutional rights are absolute. But history shows us that political leaders may overreact to threats, and gain at least temporary political support from a fearful citizenry. We’re arguing about that now, concerning the disclosure of massive government surveillance of our phone records and e-mails.

In the years after 9/11, the percentage of those saying we had too much liberty “reset” to between 25% and last year’s 13%. But this year’s results warn that even a single incident – even as authorities moved swiftly to arrest the Boston bombers – can endanger public support for freedoms we have had for 222 years.

The nation’s Founders didn’t waffle – or let fear dilute their support – when it came to standing behind the permanence of the First Amendment: Its first words are “Congress shall make no law … .”

In 1775, Ben Franklin bluntly offered his view of balancing national security and core freedoms: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Even when faced with real threats, we need to remember who we are as a nation — and what we stand for in the rest of the world.

Gene Policinski is senior vice president of the First Amendment Center and COO of the Newseum Institute. E-mail him at gpolicinski@newseum.org.

Editor’s note: The 2013 State of the First Amendment survey of 1,006 adults nationwide was conducted in May 2013, by telephone, by the STATS Group, directed by Dr. Kenneth Dautrich. The sampling error is plus or minus 3.2% at the 95% level of confidence: There is one chance in 20 that results would differ by more than 3.2 points either way in sampling another group.